477 EDA 2024
Pa. Super. Ct.Sep 2, 2025Background
- Aug. 1, 2022 closing of sale of three McDonald’s restaurants; purchase included all equipment and a pre-closing joint inspection protocol with a “punch list” and a 30‑day repair period after closing.
- Appellant (GNS) sued Mar. 10, 2023 for breach of contract, breach of express warranties, and unjust enrichment, alleging equipment was defective and not McDonald’s‑spec.
- Appellees filed preliminary objections (demurrer) arguing GNS waived claims by not completing the required joint inspection/punch‑list and that the contract limited remedies to post‑closing punch‑list repairs.
- GNS filed an amended complaint but did not timely respond to Appellees’ second set of preliminary objections; the trial court sustained the objections and dismissed with prejudice on Jan. 9, 2024.
- GNS moved to vacate and for leave to file a second amended complaint nunc pro tunc, claiming electronic service and counsel’s administrative oversight; the court denied relief and this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether amended complaint states a breach of contract despite not completing the punch‑list inspection | GNS: alleged contract, breach (equipment not in working order per McDonald’s specs), and damages; notice/punch‑list not an element of breach | Appellees: contract required joint inspection and written punch‑list; GNS’s failure to complete/provide punch‑list waived post‑closing claims | Held: Amended complaint admitted partial inspection and failure to follow punch‑list protocol; contract barred recovery on pleaded theory — claim insufficient as a matter of law |
| Whether unjust enrichment is available despite the written purchase agreement | GNS: unjust enrichment pleaded in the alternative | Appellees: written agreement governs the relationship; unjust enrichment inapplicable | Held: Doctrine inapplicable when parties’ relationship is governed by an express written contract |
| Whether nunc pro tunc relief is warranted for GNS’s untimely response to preliminary objections (electronic service/administrative oversight) | GNS: counsel missed electronic filing due to administrative oversight; counsel continued to advance the case; no prejudice to appellees | Appellees: mere neglect/oversight cannot justify nunc pro tunc; GNS had ample time before the court ruled | Held: Administrative oversight is insufficient; no non‑negligent justification for nunc pro tunc relief; denial affirmed |
| Whether dismissal with prejudice (vs. leave to amend or dismissal without prejudice) was appropriate | GNS: dismissal with prejudice was too severe; requested remand or 20 days to amend | Appellees: preliminary objections were meritorious; leave to amend would be futile | Held: Trial court did not abuse discretion in dismissing with prejudice given uncurable defects and failure to oppose objections |
Key Cases Cited
- Marks v. Nationwide Ins. Co., 762 A.2d 1098 (Pa. Super. 2000) (standard of review for sustaining preliminary objections/demurrer)
- Peters Creek Sanitary Auth. v. Welch, 681 A.2d 167 (Pa. 1996) (Rule 1026 permissive; late pleadings allowed only when no prejudice and justice requires)
- Carr v. Michuck, 234 A.3d 797 (Pa. Super. 2020) (standards for granting nunc pro tunc relief)
- Vietri ex rel. Vietri v. Delaware High Sch., 63 A.3d 1281 (Pa. Super. 2013) (grounds for nunc pro tunc: non‑negligent circumstances, court breakdown, or fraud)
- Bethke v. City of Philadelphia, 282 A.3d 884 (Pa. Cmwlth. 2022) (mere counsel neglect/administrative oversight cannot justify nunc pro tunc)
- Albert v. Erie Ins. Exch., 65 A.3d 923 (Pa. Super. 2013) (elements required to plead breach of contract)